Marcotte v. Hartman

• Decision Date: 12 May 1891
• Citation: 48 N.W. 767,46 Minn. 202
• Parties: William Marcotte and others v. Ferdinand W. Hartman and another
• Court: Minnesota Supreme Court

48 N.W. 767

46 Minn. 202

William Marcotte and others v. Ferdinand W. Hartman and another

Supreme Court of Minnesota

May 12, 1891

Appeal by defendants from a judgment of the district court for Carlton county, where the action (brought to set aside a foreclosure by advertisement) was tried by Stearns, J.

Judgment reversed, and new trial ordered.

H Oldenburg and Wm. W. Billson, for appellants.

Cash & Williams, for respondents.

OPINION

Vanderburgh, J.

The act of March 1, 1883, (Laws 1883, c. 112,) must be read in connection with the statutory provisions for the foreclosure of mortgages by advertisement.The act provides that "no such sale shall be held invalid or set aside by reason of any defect in the notice thereof, or in the publication or posting of such notice, or in the proceedings of the officer making such sale, unless the action in which the validity of such sale shall be called in question be commenced, or the defence alleging its invalidity be interposed, within five years after the date of such sale: * * * provided, that such actions shall be commenced with reasonable diligence in all cases."It follows that actions to set aside a foreclosure for the defects or irregularities of the class specified must be brought with reasonable diligence in all cases, and in no case later than five years after the sale.Hence a party may lose his right to such relief by his laches in a less time than five years.The action is an equitable one, and must proceed upon equitable principles.It is obvious that the question of the plaintiffs' laches is necessarily a material one, and strictly, the complaint ought to disclose facts explaining delays which would, unexplained, appear to be unreasonable.Badger v. Badger, 69 U.S. 87, 2 Wall. 8717 L.Ed. 836;Humphrey v. Carpenter, 39 Minn. 115, (39 N.W. 67.)

This action was brought to set aside a foreclosure sale made nearly five years before it was instituted, on the ground of a defect in the published notice in failing to state the name of the mortgagor correctly.The question of laches was not raised on the pleadings at the trial, and will be determined here upon the finding of the court on the subject, which is as follows: "The said Leander Marcotte[mortgagor] was informed of said foreclosure proceedings shortly after the foreclosure sale, but there is no evidence to show that either the said Leander Marcotte in his lifetime, or these plaintiffs before the commencement of this action, knew of the defect in the notice of foreclosure sale."The answer alleged that the mortgagor knew of the sale and proceedings at the time.The mortgage in question was dated February 19, 1883, and fell due August 19, 1883, and the foreclosure sale occurred September 7, 1885.The mortgagor died January 25, 1890, upwards of four years and four months after the sale, and this action was brought by the plaintiffs, his heirs, on or about the 1st day of September, 1890.The court below held that the mortgagor was entitled to "a reasonable time after actual knowledge of the defect" within which to bring his action, not exceeding five years, and that knowledge of the fact of the foreclosure was not sufficient.That is to say, his attention must have been directed...